The bill proposing use of administrative detention in criminal proceedings – FAQ
National Security Minister Itamar Ben-Gvir is advancing a bill that would enable him to order administrative detention as part of an effort to fight crime. What is administrative detention? What are the concerns about using it? Can administrative detention stop murders in Israel’s Arab communities, and will the High Court of Justice strike down the law? Att. Gil Gan-Mor, ACRI’s Director of Civil and Social Rights, explains.
What is administrative detention?
Administrative detention is detention without trial, potentially for a long period of time. People are not put in administrative detention for acts they are suspected of having committed but in order to prevent them from carrying out an illegal act in the future.
When is administrative detention being used today?
Military law, which applies in the Occupied Territories, allows holding a person in administrative detention - without charge or trial - for up to six months. The detention order can be renewed repeatedly for up to six months at a time, and there is no maximum limit on its duration. Officially, people can be kept in prison like this for years (and they have on more than one occasion) without due process, without the allegations against them being put to the legal test and without the person having the basic right to defend against the accusations.
The power to put people in administrative detention exists inside proper Israel as well, but it is rarely used. This power, originating in draconian regulations from the time of the British Mandate, was enshrined in Israeli law in 1979 via the Emergency Powers (Arrests) Law 5739-1979. While the law applies only when the country is in a state of emergency, Israel has been in an official state of emergency ever since its inception. Under Israeli law, the Minister of Defense may order a person detained for six months if he or she has “reasonable grounds to believe national security or public safety so require.” Unlike the situation in the Occupied Territories, in Israel, an administrative detainee must be brought before a judge (the president of a District Court) within 48 hours. Additionally, a review of whether or not detention is still required must be conducted every three months. The decision of the District Court can be appealed to the Supreme Court.
What are the concerns about using administrative detention?
Administrative detention, which allows depriving a person of their liberty for months without trial, is a severe violation of fundamental human rights, primarily the rights to liberty and dignity as well as the rights to freedom of movement and due process. While administrative detainees are brought before a judge, and their detention comes under judicial review, the fact that the vast majority of the material on which an administrative detention order is based is classified and remains concealed from both the detainee and their lawyer means that there is no effective opportunity to mount a defense or disprove the allegations. In many cases, the detainee is not given any information about the specific allegations against them. Given these circumstances, judicial review, in this case, cannot serve as a true guarantee that the detention is legal, and even the fairest of judges would not be able to deliver justice. The judicial review conducted in cases of administrative detention lacks the most basic guarantees to ensure a proper judicial proceeding, casting doubt on whether it truly is a judicial process.
Administrative detention is a severe violation of basic human rights even when carried out to protect national security and certainly when utilized to prevent ordinary crime.
Can administrative detention stop murders in Israel’s Arab communities?
Anti-democratic, draconian measures such as these surely can stop a murder in certain circumstances. However, the harm they inflict is immense, far worse than any possible benefit. Administrative detention is not a legitimate measure in a democratic society where citizens are innocent until proven guilty, and individuals may only be deprived of their liberty after standing trial, mounting a defense and being proven guilty beyond any doubt.
Will the High Court of Justice strike down the law?
The law raises significant constitutional difficulties, as it severely violates constitutional rights while other measures can be used to achieve the object of protecting public safety. For this reason, the Minister will have a hard time defending the law in court.